Bangalore District Court
Naga Reddy N C vs Gajendra B L on 4 January, 2024
30
OS No.3633/2016
KABC010112692016
IN THE COURT OF THE LXI CITY CIVIL &
SESSIONS JUDGE: BENGALURU CITY (CCH-62)
Dated this the 04 th day of January, 2024
PRESENT :- SRI R.RAVI., B.Sc., LL.B.,
LXI Addl. City Civil & Sessions Judge,
Bangalore, (CCH-62)
ORIGINAL SUIT NO.3633/2016
PLAINTIFF/s : 1 Sri N.C.Naga Reddy
S/o.Sri Chowda Reddy
Aged about 69 years
R/a.Naga Reddy Mango Farm
Near Sri Kalabyraveshwara Polytechnic
Bus Stop, Madurai Main Road,
Gnana Vikas Campus
Hesaragatta
Bengaluru-560 088
2 Smt.N.Preethi
D/o.Sri N.C.Naga Reddy
W/o.Sri N.G.Sreenivas
Aged about 37 years
R/a.No.844, Rajapalya
Whitefield Main Road
Near Citi Bank ATM
Bengaluru-560 048.
(By Sri.V.S., Advocate)
30
OS No.3633/2016
V/s.
DEFENDANT/s : 1 Sri Gajendra.B.L.
S/o.Late B.S.Lakshmanappa
Major
R/a.N.18, Sanjeevini Nilaya
Lakshmanappa Nagar,
Lottegollahalli
RMV II Stage,
Sanjaynagar Post
Bengaluru-560 094
2 Narendrababu
S/o.Sri Siddalingashetty
Major
R/a.No.286, Chokkasandra Nagamma
Layout
T.Dasarahalli
Bengaluru-560 057.
(By Sri.T.S., Advocate)
Date of institution
of the suit : 11.05.2016
Nature of the suit
[suit on pronote, suit
for declaration and
possession, suit
for injunction] : Permanent Injunction
Date of the commencement
of recording of the evidence : 17.09.2019
Date on which the
Judgment was pronounced : 04.01.2024
30
OS No.3633/2016
Year/s Month/s Day/s
Total Duration : -08- -07- -23-
JU DG M E NT
This is a suit one filed by the plaintiffs against the
defendants for the relief of permanent injunction restraining
the defendants, their henchmen, agents, representatives or
anybody claiming under or through the defendants in
interfering with the plaintiffs peaceful possession and
enjoyment of the schedule property and to direct the
defendants to make payment of advocates fee, cost of
litigation and incidental expenses to the plaintiffs and to
grant such other reliefs as deems fit in the interest of justice
& equity.
SCHEDULE PROPERTY
All the piece & parcel of the immovable property bearing
Site No.67, New Municipal No.67/1, carved out of converted
land bearing Sy. No.1/2 (conversion order bearing No.B.D.
dis.ALN.SR.5441, passed by the Deputy Commissioner,
Bengaluru District) situated by Lottegollahalli Kasaba Hobli,
Bengaluru North Taluk, measuring East to West 30 ft. and
North to south 40 ft. in all measuring 1,200 ft., together with
6 sq. building which is old and in dilapidated condition and
bounced on;
East by : Site No.66
30
OS No.3633/2016
West by : Newly formed road
North by : Road
South by : Private Property
2. The case of the plaintiffs is that one
B.S.Lakshmanappa S/o.H.Sanjeevappa was the owner of the
immovable property bearing Site No.67, carved out of
converted land in Sy. No.1/2 of Lottegollahalli Village, Kasaba
Hobli, Bengaluru North Taluk, presently coming within the
limits of BBMP bearing Site No.67/1, which is morefully
described as suit schedule property and acquired the same
under a registered partition deed and said B.S.Lakshmanappa
executed a Registered General Power of Attorney in favour of
the 1st plaintiff on 14.12.1979 registered in the office of the
Sub Registrar, Bengaluru North Taluk in respect of the
schedule property by receiving the entire sale consideration
amount and thereby authorized and empowered the 1 st
plaintiff to enjoy, deal and perform all acts, deeds and things
in respect of the schedule property and the first plaintiff was
authorized and empowered to exercise all rights as lawful
owner of the schedule property and as on the date of
execution of the GPA in favour of the first plaintiff the
schedule property in its larger extent was converted into
residential immovable property and copy of the conversion
order in this regard came to be secured by the 1 st plaintiff by
making necessary application on 07.06.1983 to the concerned
30
OS No.3633/2016
authority and in pursuance of the registered GPA executed by
B.S.Lakshmanappa in favour of the 1st plaintiff the first
plaintiff was exercising all his rights as lawful owner of the
schedule property and was in peaceful possession and
enjoyment of the schedule property ever since then and that
the 1st plaintiff has secured license and sanction plan from
the authorities of erstwhile Geddalahalli Panchayath for
putting up construction of residential building over the
schedule property and the 1st plaintiff was also paying
property tax to the panchayath authority from time to time
and in pursuance of the schedule property coming within the
limits of BBMP the name of the 1 st plaintiff is registered in the
BBMP & authorities have assigned new Municipal Number as
67/1 and PID No,100-591-67/1 and that the 1 st plaintiff has
also paid betterment charges to the BBMP authorities in
respect of the schedule property and also having paid
property tax from time to time and in pursuance of the 1 st
plaintiff securing license and sanction plan on 02.04.1983
copies of which are produced & the 1 st plaintiff has put up
around 6 sq. residential building over the schedule property
and was residing in the schedule property along with his
family members and the 1st plaintiff has also secured
electricity connection and water connection in respect of the
schedule property and the 1st plaintiff ever since the date of
registered GPA dated 14.12.1979 is exercising his rights over
the schedule property as lawful owner of the schedule
30
OS No.3633/2016
property without any interference and/or interruption from
B.S.Lakshmanappa or anybody else and the 1 st plaintiff has
executed a registered sale deed in favour of his daughter, who
is the 2nd plaintiff, conveying the schedule property as per the
registered sale deed dt.18.04.2006 and the 2 nd plaintiff in
pursuance of acquiring right, title and interest over the
schedule property is in peaceful possession and enjoyment of
the same without any interference or interruption from any
person and from any corner and 2nd plaintiff along with her
family continued to reside in the schedule property and was
exercising all her rights as lawful owner of the schedule
property paying property tax to the BBMP authority and
paying electricity and water charges to the concerned
authorities and as the residential building became old the n
the 2nd plaintiff was planning to demolish the entire building
and erect a new building & as such the 2 nd plaintiff had to
move to the address shown in the cause title and the
residential building that is in existence over the schedule
property as on date is not habitable and hence is kept vacant
with a view to demolish the entire building and put up a new
building and the second plaintiff was making preparations
and arrangement to put up a new residential building wherein
the 2nd plaintiff was required to arrange funds, secure license
and sanction plan and also secure transfer of khatha & in
view of the khatha in respect of the schedule property was
standing in the name of the 1st plaintiff who is none other
30
OS No.3633/2016
than the father of the 2nd plaintiff. When things stood thus
some persons claiming to be the agents of the defendants and
who are having no manner of right, title or interest over the
schedule property made their appearance near the schedule
property during the last week of April 2016 and this fact was
brought to the knowledge of the plaintiffs through the
relatives/well-wishers who are residing near the schedule
property and who had also questioned the appearance of the
agents of the defendants and by the time the plaintiffs could
reach the schedule property the said agents of the defendants
had vanished from the scene posing threat that they would
come back again with a better force and the 2nd defendant on
behalf of the 1st defendant has caused legal notice to the
plaintiffs making allegations that the 1 st defendant is having
interest over the immovable property bearing Site No.68, for
which a detailed reply is being sent by the plaintiffs and the
legal notice dt.15.04.2016 is received by the 1 st plaintiff
during the first week of May 2016 on 05.05.2016 and the
plaintiffs were in the process of issuing necessary reply to the
legal notice and in the meanwhile the defendants along with
their henchmen appeared near the schedule property on
08.05.2015 and at that point of time the plaintiffs who had
made a casual visit to the schedule property were present
near the schedule property and objected the presence of the
defendants and their henchmen and the defendants made
baseless and unwarranted allegations and further posed
30
OS No.3633/2016
threat to the plaintiffs that the plaintiffs would be
dispossessed from the schedule property if the plaintiffs do
not agree to sell the schedule property in their favour to the
price offered by the defendants and the plaintiffs expressed
that they have no intention to sell the property for the present
and further requested them not to cause any sort of
interference or disturbance to the peaceful possession and
enjoyment of the schedule property as the defendants have no
manner of right, title and interest over the schedule property
and the defendants disappeared from the scene by posing
further threat that they would come back with a better force
and the plaintiffs immediately approached the jurisdictional
police in complaining the illegal and unlawful acts of the
defendants but the same ended in vain wherein the police
authority have stated that the issue is civil in nature & the
second plaintiff who has acquired absolute right, title and
interest over the schedule property through the first plaintiff
by way of registered sale deed as stated supra was and is in
peaceful possession and enjoyment of the schedule property
and the first defendant who has alleged to be the only son of
B.S.Lakshmanappa and who has further alleged that his
father B.S.Lakshmanappa died on 06.04.2006 are not within
the knowledge of the plaintiffs and that the first defendant is
put to strict proof of the same and assuming but not
admitting that B.S.Lakshmanappa died on 06.04.2006 even
in such circumstances also the 1 st defendant who is alleged to
30
OS No.3633/2016
be the son of B.S.Lakshmanappa cannot derive any right, title
and interest over the schedule property as the schedule
property was not left behind by B.S.Lakshmanappa to be
succeeded by the 1st defendant & as such the above suit has
been filed against the defendants for the relief of the
permanent injunction.
3. On the other hand the defendants have filed their
written statement & denied the entire averments of the plaint
as false and further contended that B.S.Lakshmanappa
S/o.Sanjeevappa was owner of the immovable property in Sy.
No.1/2 of Lottgollhalli Village, Kasaba Hobli, Bengaluru North
Taluk is correct and further contented that the land in Sy.
No.1/2 of Lottgollhalli village was acquired under the
registered partition deed is correct and property in Sy. No.1/2
has fallen to the share of B.S.Lakshmanappa in the family
partition dt.27.08.1970 and the contents of paragraph No.4 of
the plaint that B.S.Lakshmanappa had executed a GPA in
favour of the first plaintiff on 14.12.1979 is denied as false,
baseless and untenable and B.S.Lakshmanappa had not
executed any GPA in favour of the first plaintiff as alleged and
further allegation that B.S.Lakshmanappa had received the
entire sale consideration amount and thereby authorized and
empowered the first plaintiff to enjoy, deal and do all acts,
deeds and things in respect of the schedule property is denied
30
OS No.3633/2016
as false and untenable and further contention of the plaintiffs
that first plaintiff was authorized and empowered to exercise
all rights as lawful owner of the schedule property is denied
as false, baseless and untenable and the said GPA produced
by the plaintiffs is a created document and the same is a
bogus document without any legal sancity and
B.S.Lakshmanappa had not executed the same and had no
necessity to execute the same and the averments in
paragraph No.5 of the plaint that the larger extent was
converted into residential purpose is in correct and these
defendants submit that it was Sy. No.1/2 of Lottegollahalli
Village, Kasaba Hobli, Bengaluru North Taluk which was
converted to residential purpose and there was no need for
plaintiff to secure the conversion order from authorities and
the conversion order is secured by the plaintiffs with a
malafide and ulterior motive and for creating false documents
in respect of the suit property and accordingly the question of
the first plaintiff exercising ownership, possession and
enjoyment of the suit property does not arise. The alleged
revenue documents in respect of the suit property have been
created by the plaintiff and the averments made in para No.7
of the plaint that the first plaintiff secured license and plan
from the authority of the erstwhile Lottegollahalli Panchayath
for putting up construction etc., is false and as the plaintiffs
are not in possession and enjoyment of the suit property nor
possession was given to them at any point of time the
30
OS No.3633/2016
question of they securing license and plan to put up
construction does not arise and the first plaintiff has created
documents and the same does not have any sanctity in the
eye of law and the alleged khatha in favour of the 1 st plaintiff
is created documents and there could not have been any
khatha in the absence of title to the suit schedule property
and the betterment charges, tax paid receipts etc., do not
confer title or possession of the suit property in favour of the
plaintiffs and the contention of the plaintiffs in paragraph
No.8 of the plaint that the name of the plaintiffs is registered
as owner/anubhavdhar in the records of BBMP is denied as
false and the khatha extract is created by the plaintiff and the
same does not have any sanctity in the eye of law and the
averments in paragraph No.9 of the plaint that the 1 st plaintiff
has put up construction of 6 sq. residential building over the
suit property and residing with his family members is denied
as false, baseless and untenable and the 1st plaintiff does not
have any right, title, interest or possession over the suit
property pursuant to the alleged GPA dt.14.07.1979 and the
1st plaintiff did not have any right, title or interest to execute a
registered sale deed in favour of his daughter the 2 nd plaintiff
by the registered sale deed dt.18.04.2006 and when the 1 st
plaintiff did not have any manner of right, title or interest in
the property and he could not have transferred better title to
his daughter by the alleged sale deed dt.18.04.2006 and the
plaintiffs have colluded and connived in creating false and
30
OS No.3633/2016
bogus documents in respect of the suit schedule property in
order to knock away the valuable property when the 1 st
plaintiff was not empowered by B.S.Lakshmanappa as alleged
in the suit he could not have any right, title and interest over
the suit property and in the said circumstances in the
absence of any right, title or interest the 1 st plaintiff could not
have executed the alleged sale deed in favor of his daughter
the 2nd plaintiff and the plaintiffs have colluded in creating
false and bogus documents in order to file the false case and
at no point of time were the plaintiffs are in possession and
enjoyment of the suit property nor do they have any manner
of right, title or interest in the suit schedule property and the
2nd defendant on behalf of the 1 st defendant has caused legal
notice to the plaintiffs by the notice dt.15.04.2016 is correct
and in the legal notice these defendants had clearly stated
that B.S.Lakhmanappa had not entered into any agreement of
sale, nor executed power of attorney, nor had created charge
in respect of the notice schedule property and that the 2 nd
plaintiff of late had been making attempts to trespass into the
notice schedule property by claiming ownership of the same
and it was further contended that the plaintiffs had created
false and concocted deeds purporting to be a power of
attorney executed by B.S.Lakshmanappa in favour of the 1 st
plaintiff in respect of site No.67, formed in Sy. No.1/2 of
Lottegollahalli Village, Kasaba Hobli, Bengaluru North Taluk
and it was also brought to the notice of the plaintiffs that they
30
OS No.3633/2016
had by taking into consideration the death of
B.S.Lakshmanappa on 06.04.2006 had created a false, bogus
and illegal sale deed on 18.04.2006 by virtue of the alleged
GPA which was created for the purpose of the sale deed after
the death of B.S.Lakshmanappa with the fraudulent intention
of interfering in the valuable property belonging to the first
defendant and it is only thereafter on receipt of the notice the
plaintiffs have created a false cause of action and filed the
false and frivolous suit against these defendants and the 2 nd
plaintiff is not in possession of the suit property and
B.S.Lakshmanappa died on 06.04.2006 and on the death of
B.S.Lakshmanappa the 1st plaintiff could not have executed
the sale deed by virtue of the alleged GPA after his death in
favour of the 2nd plaintiff and thus it is seen that the plaintiffs
have upon the death of B.S.Lakshmanappa created the false
and bogus sale deed and in this regard the 1 st defendant has
initiated criminal proceedings against the plaintiffs for
creating false and bogus documents by virtue of the created
power of attorney after the death of Lakshmanappa in PCR
No.11732/2016 and the same is pending consideration on the
file of 4th ACMM Bengaluru and the plaintiffs are not in
possession of the suit property and the plaintiffs do not have
any manner of right, title & interest over the suit property and
the alleged power of attorney and sale deed are created and
bogus documents which do not have any legal sanctity and by
the said documents the plaintiffs do not derive any right, title,
30
OS No.3633/2016
interest or possession over the suit property and the first
plaintiff by taking advantage of the death of Lakshmanappa
on 06.04.2006 has by the false and bogus power of attorney
created the alleged bogus sale deed in favour of the 2 nd
plaintiff and there is no property in existence as described in
the schedule and thus the plaintiffs do not have any right,
title, interest or possession over the suit property accordingly
the suit for permanent injunction is not maintainable and
when the plaintiffs themselves admit of the denial of title and
possession of the suit property by these defendants they
could not have maintained the present suit and the
defendants submit that the 1st defendant had entered into an
agreement of sale with the 2nd defendant in respect of the
notice schedule property dt.11.03.2016 and having come to
know of the same on receipt of the notice issued by these
defendants by creating a false and fantastic story as cause of
action have filed this suit on wholly false and illegal
contentions & accordingly prayed for dismissal of the above
suit with costs.
4. On the basis of above pleadings of both the parties
the following issues are framed;
1. Whether the Plaintiff's prove
that they are in peaceful possession
and enjoyment of the suit schedule
property as on the date of the suit?
30
OS No.3633/2016
2. Whether the plaintiff's further
proves the alleged interference of the
defendants ?
3. Whether the Plaintiff's further
proves that they are entitled for the
relief of permanent injunction as
prayed?
4. What Order or Decree ?
5. And in order to prove the facts of the above issues
the plaintiff No.2 got herself examined as PW-1 and got
marked documents at Ex.P.1 to Ex.P.101 & where as the
defendants got examined their SPA as DW-1 & also adduced
the evidence of one witness as DW-2 and in all got marked
documents at Ex.D.1 to Ex.D.3 and thereafter the matter was
posted for arguments.
6. And I have heard the arguments of both sides &
perused the written arguments filed by both sides and so also
perused the entire materials placed on record and my findings
of the above issues are as under;
ISSUE No.1 : In Negative
ISSUE No.2 : In Negative
ISSUE No.3 : In Negative
ISSUE No.4 : As per final order, for
the following;
30
OS No.3633/2016
R E A SON S
7. ISSUE No.1 to 3:- Since these issues are
interlinked with each other then they are hereby discussed
commonly in order to avoid repetition of facts.
8. On perusal of the entire materials placed on record by
both the parties, I found that it is an admitted fact that on Sri
B.S.Lakshmanappa S/o.Sanjeevappa was the owner of suit
schedule site bearing No.67 carved out of converted land
bearing Sy.No.1/2 of Lottegollahalli village, Kasaba Hobli,
Bengaluru North Taluk.
9. It is also an admitted fact by both the parties that the
said B.S.Lakshmanappa has acquired the above suit schedule
property under a registered family partition deed dated
27.08.1970.
10. Now it is the specific contention of the plaintiffs that
the said B.S.Lakshmanappa executed a registered GPA
dt14.12.1979 in respect of the suit schedule property by
receiving the entire sale consideration amount from the
plaintiff No.1 and thereafter the plaintiff No.1 was in
possession and enjoyment of the suit schedule property and by
virtue of the sanction plan dt.02.04.1983 the plaintiff No.1 has
put up a six square residential building over the schedule
30
OS No.3633/2016
property and was residing with his family members and
thereafter on 18.04.2006 he has sold the said suit schedule
property in favour of his daughter namely plaintiff No.2 and as
such the plaintiff No.2 continued to reside in the schedule
property and when that is so on 08.05.2016 the defendants
have tired to interfere with the plaintiff's peaceful possession
and enjoyment of the suit schedule property & hence the
plaintiffs are constrained to file this suit for the relief of
permanent injunction.
11. In order to prove the above facts though the plaintiff
No.2 got herself examined as PW-1 and got reiterated the
averments of the plaint and also got marked the alleged GPA at
Ex.P.1 to prove that the said B.S.Lakshmanappa has executed
the said GPA in favour of the plaintiff on 14.12.1979 in respect
of the suit schedule property by receiving the entire sale
consideration amount is concerned, the same do not hold any
water as the said alleged GPA of Ex.P.1 neither shows the
receipt of any sale consideration amount by the said
B.S.Lakshmanappa nor ever shows the payment of the same
by the plaintiff No.1.
12. On the above point since the plaintiff No.2/PW-1 at
page No.8 of her cross-examination has clearly admitted that
'she do not know as to how much amount was paid during
the execution of the said GPA and it is true to suggest
30
OS No.3633/2016
that no acknowledgment receipt was being given with
regard to the payment of the said sale consideration
amount' & since the said plaintiff No.2/PW-1 at page No.7 of
her cross-examination has further admitted that 'The alleged
sale consideration amount of Rs.6,75,000/- is neither
given to the said B.S.Lakshmanappa nor to his children,
but she has given the same to her father/plaintiff No.2 ' &
since the alleged sale deed of Ex.P.42 shows the alleged sale
consideration amount as Rs.8,10,000/- and since the plaintiff
No.2 has neither pleaded nor even produced any cogent
material evidence to show her earning capacity to pay the said
alleged consideration amount and since the plaintiff No.1 is
also neither adduced any evidence nor even produced any
cogent materials for having paid any sale consideration
amount to the said B.S.Lakshmanappa & since in a ruling of
AIR 2022 SC 564 one relied on by the defendants the Hon'ble
Supreme Court of India has clearly held that 'T.P. Act,
Section 54 - Sale Deed - Without payment of
consideration - Effects - Plea that appellant executed
power of attorney in favour of his elder brother and acting
on the said POA, two sale deeds were executed by brother
in favour of his minor sons and his wife - Purchasers -
Minor Sons and Wife had no earning capacity - No
evidence adduced by Brother about payment of price
mentioned in sale deeds - Sale deeds held, void being
executed without consideration' then it has to be held in
30
OS No.3633/2016
unequivocal terms that under the alleged GPA of Ex.P.1 and
sale deed of Ex.P.42 the plaintiffs have neither derived any title
nor even derived any possession over the alleged suit property
& hence the ruling of ILR 2000 KAR SN 84 one relied on by
the plaintiffs is of no help to their case.
13. And even otherwise for arguments sake if it were to
be held that under the alleged GPA of Ex.P.1 the plaintiff No.1
has derived authority to sell the suit schedule property to the
plaintiff No.2 through the sale deed of Ex.P.42 is concerned,
the same are also of no help to the case of the plaintiffs as
admittedly the schedule of the alleged GPA of Ex.P.1
interestingly shows that the words of 'Sy No.1/2' &
'Lottegollahalli' and 'Converted Land' have been inserted by
handwriting that too after the alleged registration of the said
GPA of Ex.P.1.
14. And since the said handwritten portions in the
schedule of Ex.P.1 has not at all been counter signed by the
alleged executor of the said document and since the due
execution and attestation of the said GPA/Ex.P.1 is specifically
denied by the defendants and since the plaintiff No.1 has not
at all stepped into the witness box to clarify the above insertion
& also to prove the due execution of Ex.P.1 and since the
plaintiff No.2/PW-2 at page No.2 of her cross-examination has
clearly admitted that 'She do not know how the said words
30
OS No.3633/2016
of 'Sy.No.1/2' & 'Lottegollahalli' have been inserted in the
said GPA of Ex.P.1 and no counter-signature is found at
the inserted words by the executor & she was not at all
present during the execution of Ex.P.1 and she do not
know how the said B.S.Lakshmanappa has acquired
Sy.No.1/2' and since in a ruling of ILR 2005 KAR 884 one
relied on by the defendants out Hon'ble High Court of
Karnataka has clearly held that 'Evidence Act,1872 -
Section 85 - Presumption as to power of attorney under -
Held - Presumption operates in favour of the party relying
on a document, provided he must prove that the
document is duly executed and authenticated' and in terms
of the above dictum since the plaintiffs have neither examined
any attesting witness to prove the due execution nor even
taken any cogent steps to prove the authenticity of the said
GPA of Ex.P.1 then it has to be once again held that the
plaintiffs have neither derived any title nor derived any
possession over the suit schedule property through the alleged
GPA of Ex.P.1.
15. And more over it is interesting to note at this stage
that since the defendants have taken up a specific contention
that the said B.S.Lakshmanappa has died on 06.04.2006 &
has also produced his death certificate at Ex.D.3 and as such
the plaintiff No.1 had no right to sell the alleged suit schedule
property to the plaintiff No.2 through the sale deed of Ex.P.42
30
OS No.3633/2016
dated 18.04.2006 and since the defendants before filing of the
suit has intimated the death of the said Lakshmanappa
through their legal notice of Ex.P.43 and since the plaintiff
No.2/PW-1 at page No.10 of her cross-examination has clearly
admitted that 'She knows the issuance of the legal notice of
Ex.P.43 by the defendants and though the said legal
notice of Ex.P.43 contains the death said Lashmanappa
still she personally do not know the same & before filing
of the suit they have not at all enquired with regard to the
death of said B.S.Laskhmanappa' & since in a ruling of AIR
2007 Rajasthan 1666 one relied on by the defendants it has
been clearly held that 'Power of Attorney's Act Section2 -
Contract Act, Section 201 - Power of Attorney - Is
operative and effective only during the life time of doner -
Doner and Donee stand in relationship of Master and
Agent - Since actions done by donee or deemed to be
actions done on part of doner, naturally said Power of
Attorney cannot be operative or be effective after demise
of the doner - Sale Deed signed by holder of Power of
Attorney after demise of done - Illegal' then it has to be held
in unequivocal terms that the plaintiffs have once again failed
to prove that they have allegedly derived any title or possession
over the alleged suit schedule property through the alleged sale
deed of Ex.P.42.
16. And lastly though the plaintiffs are allegedly
30
OS No.3633/2016
contending that through the documentary evidence of Ex.P.1 to
Ex.P.41 the plaintiff No.1 was in alleged possession of the suit
schedule property and he had also put up a six square
residential building over the suit schedule property &
thereafter through the documentary evidence of Ex.P.42,
Ex.P.45 to 94 the plaintiff No.2 is in possession of the suit
schedule property from 18.04.2006 till the date of filing of the
suit & as on today is concerned, the same once again do not
hold any water as contrary to the said oral & documentary
evidence the plaintiff No.2/PW-1 at page No.5 of her cross-
examination has clearly admitted that 'She do not able to
say the extent of sy. No.1/2 and she do not know how
many sites are being formed in the said Sy.No.1/2' &
further admitted at page No.9 also that 'She has not at all
produced any layout plan & she do not know why his
father has not at all got changed the khatha of the suit
schedule property in his name from 1979 till 2005'.
17. And above all though the schedule of alleged
Ex.P.1/GPA & Ex.P.42/Sale deed allegedly shows the
existence of Road at western and northern side still the
photographs of Ex.P.88 to 94 one produced by the plaintiffs
themselves does not show the existence of two roads towards
the western and northern side of the alleged suit schedule
property. And since the plaintiff No.2/PW-1 at page No.6 of her
cross-examination has clearly deposed that 'The suit
30
OS No.3633/2016
schedule property is not at all a corner site and the door
of the schedule property exists towards northern side &
she do not know the owner of the house which is situated
towards northern side and she do not know the owner of
the house which is situated towards southern side ' & since
the plaintiff No.1/PW-1 at page No.4 & 5 of her cross-
examination has clearly admitted that 'Since 2006 she and
the plaintiff No.1 are residing in the address one shown in
the cause title of the plaint i.e., No.844, Rajapalya,
Whitefield main road near City Bank ATM, Bengaluru-48
and since the alleged suit schedule property is situated at
Lottegollanahalli, Kasaba Hobli, Bengaluru North Taluk ' &
since the above material admissions of plaintiff No.2/PW-1
rather creates a shadow of doubt with regard to the identity of
the alleged suit schedule property and so also the alleged
possession of the plaintiff No.2 over the said alleged suit
schedule property then the rulings of ILR 2006 KAR 1047 and
2007 AIR SCW 599 one relied on by the plaintiffs are of no help
to their case.
18. On the other hand the defendants by clearly pleading
& leading the oral evidence of the GPA Holder of the defendants
at DW-1 and further producing the documentary evidence of
Ex.D.2/Partition deed dt.27.08.1970 & Ex.D.3/Death
Certificate of B.S.Lakshmanappa dt.06.04.2006 have clearly
rebutted the case of the plaintiffs and further proved that the
30
OS No.3633/2016
said B.S.Lakshmanappa has not at all executed the alleged
GPA of Ex.P.1 in favour of the plaintiff No.1 in respect of the
suit schedule property and as such the alleged sale deed of
Ex.P.42 one executed by the plaintiff No.1 in favour of his
daughter namely plaintiff No.2 in respect of suit schedule
property without payment of any sale consideration is rather a
void document and since the plaintiffs are not at all in
possession of the alleged suit schedule property & since the
plaintiffs have neither filed the present suit for the relief of
declaration & possession then the suit of the plaintiffs is not at
all maintainable in law.
19. Even though the said DW-1 has thoroughly cross-
examined by the plaintiffs still nothing worthwhile has been
elicited with regard to the deriving of any title or possession
over the alleged suit schedule property by the plaintiffs
through the alleged documents of Ex.P.1 to Ex.P.94.
20. And since in the cross-examination of the said DW-1
the plaintiffs have allegedly concentrated only on the
relationship of the said witness with that of
B.S.Lakshmanappa and as discussed above since in the cross-
examination of plaintiff No.2/PW-1 the defendants have clearly
elicited & raised a cloud over the plaintiffs title & possession
over the suit schedule property & since in a ruling of 2005 (2)
KCCR 831 it has been clearly held that 'Evidence Act, 1872-
30
OS No.3633/2016
Section 101 - Burden of Proof -Unless the plaintiff lays
some semblance of evidence, it is not necessary for the
defendant to rebut. However the plaintiff without proving
his case cannot solely rely upon the lapse of non
production of evidence by the defendant and argue that
adverse inference must be drawn against the defendant '
then it has to be held in unequivocal terms that the plaintiffs
are not at all entitled to the relief of permanent injunction
against the defendants in respect of the suit schedule property.
21. And further though the plaintiffs have allegedly
contended that since the defendants have not at all sought any
counter claim with regard to the cancellation of their GPA of
Ex.P.1 and sale deed of Ex.P.42 is concerned, the same do not
hold any water in the eye of law as in the above said ruling of
AIR 2022 SC 564 one relied on by the defendants the Honb'le
Supreme Court of India has clearly held that 'T.P. Act,
Section 54 - Sale deed - Without payment of consideration
- Is void - The document which is void need not be
challenged by declaration'.
22. And above all though there are some minor
discrepancies in the cross-examination of the said DW-1, the
same are not at all fatal to the case of the defendants as it is
an admitted fact by both the parties that the defendant No.1 is
none other than the son of the said B.S.Lakshmanappa who
30
OS No.3633/2016
originally owned the suit schedule property comprised in
Sy.No.1/2 of Lottegollahalli Village and when that is so in a
ruling of 2004 (1) KCCR 662 it has been clearly held that
'Whenever a party approaches the Court for a relief based
on the pleadings and issues, he has to prove his case. The
suit has to be decided based on the merits & demerits of
the party who approached the Court. The weakness of the
defendant cannot be considered as a trump card for the
plaintiff'.
23. So in view of the above dictums and the discussion
made above I am of the opinion that since the plaintiffs have
failed to prove that they are in peaceful possession and
enjoyment of the suit schedule property with cogent material
evidence and since the plaintiffs have also failed to prove the
due execution and attestation of the alleged documents of
Ex.P.1/GPA and Ex.P.42/Sale deed & further failed to prove
the alleged obstruction over the suit schedule property by the
defendants and since the defendants have clearly rebutted the
case of the plaintiffs and also raised a cloud over the title and
possession and so also on the identity of the suit schedule
property & since as per the dictums of AIR 2008 SC 2033 &
2023 (2) KLR 572 the plaintiffs have neither sought for the
relief of declaration nor sought the relief of possession over the
suit schedule property then they are not at all entitled to any
reliefs as claimed by them and accordingly I have answered
30
OS No.3633/2016
issue No.1 to 3 in the Negative.
24. ISSUE No.4:- In view of the discussion made on
issue No.1 to 3 and further holding issue No.1 to 3 in the
Negative, I proceed to pass the following;
ORDER
The suit of the plaintiffs against the defendants in respect of the suit schedule property for the relief of permanent injunction is hereby dismissed.
Draw decree accordingly.
(Dictated to the Stenographer, transcript corrected, signed and then pronounced by me in the open Court on this the 04 th day of January, 2024).
(R.RAVI) LXI Addl. City Civil & Sessions Judge, Bangalore.
A N NE X U R E I. List of witnesses examined on behalf of :
a) Plaintiff's side:
PW-1 : N.Preethi
b) Defendant's side:
DW-1 : V.Raju
30
OS No.3633/2016
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 GPA dt.14.12.1979 Ex.P.2 Copy application Ex.P.3 Conversion Order Ex.P.4 & 5 RR Extract and Conversion Extract Ex.P.6 & 7 License and Sanctioned plan Ex.P.8 to 10 Tax paid receipt Ex.P.11 to 13 BBMP Khatha Registration Ex.P.14 to 25 Tax paid receipts Ex.P.26 to 29 Encumbrance Certificate Ex.P.30 to 35 Electricity Bills Ex.P.36 to 41 Water Bill Ex.P.42 Sale deed dt.18.04.2006 Ex.P.43 & 44 Legal notice & reply Ex.P.45 Ration Card Ex.P.46 to 59 Bills issued by BESCOM and Receipts Ex.P.60 to 77 Water Bills and Receipts Ex.P.78 Transfer of Khatha Certificate Ex.P.79 Khatha Extract Ex.P.80 Khatha Certificate Ex.P.81 & 82 Tax paid receipts 30 OS No.3633/2016 Ex.P.83 C.C. of Private Complaint Ex.P.84 C.C. of Crl. Misc. No.9028/2016 Ex.P.85 C.C. of order sheet of PCR No.15132/2016 Ex.P.86 C.C. of FIR Ex.P.87 C.C. of 'B' Report submitted by Sanjaynagar Police Ex.P.88 to 94 Photographs (7 nos.) Ex.P.95 to 96 CD's (2 nos.) Ex.P.97 Application filed under Section 65B Ex.P.98 C.C. of Order in Crl. Misc. No.2643/2004 Ex.P.99 C.C. of FIR Ex.P.100 C.C. of charge sheet Ex.P.101 C.C. of memo dt.29.06.2005
b) defendants side :
EX.D.1 SPA of defendant No.1 dt.06.01.2023 Ex.D.2 C.C. of partition deed dt.27.08.1970 Ex.D.2(a) Typed copy of above partition deed dt.27.08.1970 Ex.D.3 Death Certificate of Laxmanappa.B.S. (R.RAVI) LXI Addl. City Civil & Sessions Judge, Bangalore.Digitally signed by R RAVI DN: cn=R RAVI,ou=HIGH COURT OF
R RAVI KARNATAKA,o=GOVERNMENT OF KARNATAKA,st=Karnataka,c=IN Date: 2024.01.06 11:01:26 IST